Friday, July 18, 2008

Marriage is Not a School

So argues the majority of justices in the ruling of the Supreme Court of California on pages 103-104 in “re: Marriages…”:

“In this regard, plaintiffs (those same sex couples seeking marriage licenses) persuasively invoke by analogy the decisions of the United States Supreme Court finding inadequate a state’s creation of a separate law school for Black students rather than granting such students access to the University of Texas Law School (Sweatt v. Painter (1950) 339 U.S. 629, 634),67 and a state’s founding of a separate military program for women rather than admitting women to the Virginia Military Institute (United States v. Virginia (1996) 518 U.S. 515, 555-556).”

Marriage is an education, but it is not a school. Unlike the equal access to an education, the only equal access to marriage is that which is duly clothed in commitment and free choice. Schools on the other hand, are primarily about the access men and women have to the opportunities provided by society at large. This Court errs grievously by comparing what a marriage is primarily to what a school, a public school no less, primarily, is.

Schools are primarily social in function. Teaching may be more fundamental to human life in the context of a family, but a school by definition is social. Marriage, in contrast, is a very specific and complete access to another person based solely on the commitments and choices of those two individuals. One can easily conceive of marriage as a fundamental building block of society and, therefore, as a liberty, prior to society and its governments. This is impossible in envisioning a school, especially a public school. The caricature of marriage that emerges from the Court’s attempt to draw parallels between these two unlike institutions is grotesque and offensive. The Court again degrades all humanity by arguing that what we are as people exists, like a school, primarily because of the good graces of government.

What is absurd on its face reveals greater errors in its specifics. The Court also erred in the arcane reasoning it based upon its grotesque analogy. Here is more from pages 103-104:

“As plaintiffs maintain, these high court decisions (Texas Law School and Virginia Military School) demonstrate that even when the state grants ostensibly equal benefits to a previously excluded class (a class that had been denied access, not because of their abilities, but a history of prejudice) through the creation of a new institution, the intangible symbolic differences that remain often are constitutionally significant.”

The two high court decisions alluded to are fine, but their analogy to marriage is ridiculous. No one can blame the plaintiffs for arguing it; that’s what a decent lawyer is supposed to do. However, the idea that the Supreme Court accepted this analogy is both hilarious and tragic. It’s tragic because it is a true reflection of what we have become as a society. Nothing in our public life matters. Anything goes. Judges should know better, but who really cares? Here are the differences that make the analogy of marriages and schools, let’s just say, inadequate:

The ability to marry comes from what we are as people, male and female, more than it is about who we are as people. This is also true of other essential human liberties. Because of what we are as people, we can speak. What we say determines “who we are,” or what kind of person we are. We also have the freedom to worship. This is part of the nature of what we are as people. Who we worship determines who we are as people. The content of one’s character doesn’t enter into the ability to have access to marriage, or more specifically, the access which is marriage.

Unlike the analogies at Virginia Tech., and, we hope, to the public high school at issue in Brown vs. The Board of Education, meeting certain qualifications (passing examinations, excelling at one’s coursework) has nothing to do with the right to marry. Hence, when the Court says these two people meet the qualifications we (the Court) set as those necessary to be “married” (they are of the correct age, they can form informed consent, etc), they cannot say that, therefore, these two must have equal access to marriage. Two people cannot merit marriage. Hence, what one merits is not being withheld by society because of prejudice. How two people behave once they are married determines whether or not the marriage has merit. If this is a civil rights case, it is not a civil rights case that is related to the decisions in Brown vs. the Board of Education, Virginia Tech., or the Texas Law School. Marriage is not a school.

Indeed, if it is a civil rights case, then it is far more analogous to the equal access granted or denied women, as women. Oddly, this is the analogy the Court, in footnote 65, decided did not merit consideration.

“For example, the establishment and maintenance of separate women’s collegiate athletic teams to address the long-standing discrimination against women in the allocation of athletic resources has been found to be constitutionally valid. (See, e.g., O’Connor v. Board of Education of School Dist…”

In these cases, the discussion came down not to an unwillingness to recognize the abilities of women to excel in sports. These cases weren’t about denying women the access that they merited simply because of a prejudice against gender itself. All agreed that merit existed and access was deserved. Instead, the issues in these cases came down to problems of access posed by the problems that exist by virtue of what we are as men and women. In civil rights cases of this type, merit and prejudice are not the issue. Instead, we are nonetheless confronted by what we are as people, male and female. Any disregard of who we are as people would have resulted, in these instances, in an injustice to all.

Same sex marriage is not a civil rights issue relating to race, since homosexuality is not a race. Same sex marriage is not a civil rights issue related to religion because it is not a religion. Nor is same sex marriage a civil rights case based on gender for homosexuality is not gender specific. However, if same sex marriage is a civil rights issue, there are cases of resolving inequity in access to society’s benefits that arise for other reasons. However, bringing these analogies up might be offensive to some. Nevertheless, the Supreme Court of California erred: marriage is not a school.

1 comment:

Transplanted Lawyer said...

Paul, here I think you've found the right place to criticize the Marriage Cases opinion; it's the weakest point in the reasoning. The California Constitution contains several equal protections clauses, but does not define the suspect classes that those classes apply to (other than in the case of those accused of crimes, which is an irrelevant concern for our discussion). Borrowing from Federal Constitutional jurisprudence, we know that some classes like race and gender are covered by these clauses because we know that the Federal EP clause applies to those classes.

But before the Marriage Cases, protection of people on the basis of sexual orientation (or "sexual preference," if you prefer) was a matter of statutory law in California. It has been ambiguous, until May of this year, whether homosexuality enjoyed protection under the California EP clause. That's where the Marriage Cases most meaningfully break new ground in the state's Constitutional jurisprudence.

Were I going to criticize the Marriage Case opinion, this is where I would do it -- the Court rests some of its decision to extend the right in this direction on statutory law. Statutory law is, by definition, weaker than Constitutional law because the Constitution is what authorizes the statutes to exist in the first place. It's useful to look at Constitutional law in interpreting statutes, but it does not necessarily follow that statutes are useful in interpreting the Constitution. The statutes protecting homosexuals were written well after the EP clause of the Constitution was drafted and therefore they may not necessarily reflect the meaning of that clause. At least one school of Constitutional theory suggests that the original intent of the authors of those sections of the Constitution need to be given deference and consideration.

Now, there were other reasons the Court offered for including homosexuality within the scope of EP under the state Constitution, too, so if your argument is going to be that homosexuality should not be a suspect class under the EP clause, you need to deal with those arguments, too. And there are other schools of Constitutional interpretation that minimize the importance of the intent of the Framers and place the focus more on the text and language.

Do not make the mistake of thinking that an "originalist" approach is "conservative" and a "textualist" approach is "liberal." Original intent can and often does lead to a "liberal" result as we saw this year in the Supreme Court with the habeas corpus cases. My opinion is that a too-extreme approach on either side renders the onstitution either too fluid in meaning or too static to be useful in handling situations beyond the historical understanding of the authors (like applying the First Amendment to the internet). So I would favor a middle approach taking both factors into consideration.

But within the confines of a strictly originalist school of jurisprudence, you have a good point to make here.